Employers should take care in ensuring compliance with the anti-discrimination provisions of South African employment legislation.

Johan Botes, a director in the Employment Practice at Cliffe Dekker Hofmeyr has warned employers that, "Workplace policies and practices should be carefully scrutinised to ensure that the effect of such practices or policies is not that it unfairly discriminates against employees on any of the grounds listed in Section 9 of the Constitution or Section 6 of the Employment EQUITY Act (EEA).

The honourable Minister of Labour, Mildred Oliphant issued a clear warning to employers of the Department of Labour's intention to address workplace discrimination in her budget vote speech at the end of May. The Minister highlighted as one of the Department's goals for the next year to "[r]educe inequality and discrimination in the labour market through effective compliance monitoring and enforcement of the Employment Equity Act ..."

She indicated further that her department "... remains focused in ensuring the highest level of compliance by companies. In this regard, Notices have been issued to non-complying employers and we have referred 295 cases to the Labour Court and 415 employers to the magistrate's court. We hope that those who flout the law will be successfully prosecuted."

According to Botes, "Our Constitution provides the bedrock for equality legislation where it provides in Section 9 that "[The State and No person]may directly or indirectly discriminate against anyone on one or more grounds, including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

Botes notes that the EEA contains a mirrored provision which also includes HIV status as a prohibited ground for discrimination.

Botes warns, "An employer may also be held vicariously liable for the breaches of the EEA by its employees. The judgment of the Labour Court in NTSABO v REAL SECURITY CC is an example of an employer being held liable for the sexual harassment of one of its employees committed by another employee. In that case, the Labour Court awarded the harassed employee R70 000, 00 in
damages for the harassment she suffered at the hands of her supervisor. The employer was ordered to pay the damages and compensation awarded to her," he noted.

Botes says that employers should ensure that harassment is covered in their workplace policies, that the policy is communicated to staff and that employees know what to do when confronted with (and to whom to report) incidents of harassment.

"All harassment should be investigated and appropriate action taken against culprits if employers wish to escape vicarious liability. Employers who fail to take appropriate action may be faced with not only the negative publicity associated with such litigation and loss of talented staff not willing to work under those circumstances, but may also be faced with a hefty legal bill and compensation order for their (in)action," he adds.

FOR MORE INFORMATION:
Johan Botes, Director, Employment, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1124 or email: johan.botes@dlacdh.com

Andrea Collocott, Head: Marketing, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1281 or email: andrea.collocott@dlacdh.com

Angela Graham, Tel: 084 245 245 2 yeahwrite@worldonline.co.za

Notes:
Cliffe Dekker Hofmeyr is one of the largest commercial law firms in South Africa with some 115 directors/partners and 250 qualified lawyers located at offices in Johannesburg and Cape Town.

Cliffe Dekker Hofmeyr lawyers specialise in services covering the complete spectrum of business legal needs in 11 core areas of practice. The firm also has dedicated sector-led teams consisting of lawyers with experience in a wide range of industries and the public sector.

Cliffe Dekker Hofmeyr is the South African member firm of DLA Piper Group, an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of the DLA Piper Practice but are not themselves members of it.

Cliffe Dekker Hofmeyr's Africa practice, in conjunction with DLA Piper Africa Group, is unrivalled in terms of pan-African legal services and geographical coverage.

DLA Piper is an international legal practice with over 3,500 lawyers located in 30 countries and 69 offices throughout Asia, Europe, the Middle East and the US.

For further information, please visit www.cliffedekkerhofmeyr.com